KALIKAS v THE KING [2026] SASCA 60

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER (VOIR DIRE); HIS HONOUR JUDGE HANDSHIN (TRIAL)) DCCRM-22-383 Appellant: NICHOLAS DOMAS KALIKAS Counsel: MR M CHRISTEY - Solicitor: JON LISTER BARRISTER AND SOLICITOR Respondent: THE KING Counsel: MR K LESSES AND MR T HOLE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 22/05/2026 File No/s: SCCRM-25-029259 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KALIKAS v THE KING [2026] SASCA 60 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice B Doyle) 28 May 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE This is an appeal against conviction. The appellant was charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’). On 12 March 2021, police were conducting a long running investigation known as ‘Operation Leo’ into the drug trafficking activities of Beau Cochrane, who was a member of an Outlaw Motorcycle Crime Gang. It was not the intention of police to arrest or search Mr Cochrane on 12 March 2021. However, police did intend to stop and search any other persons they suspected to have participated in a drug transaction with Mr Cochrane, if that situation arose. The appellant was not known to police nor was he a person of interest under Operation Leo. At about 10:20pm on 12 March 2021, police observed Mr Cochrane travelling in the front passenger seat of a red Audi vehicle. The vehicle entered the carpark of the Windsor Hotel. The appellant, who was driving a Ford Territory vehicle, was already situated in the carpark when the red Audi arrived and parked ‘window to window’ with the Ford Territory. Police officers suspected that there was a physical exchange of illicit drugs between the occupants of the vehicles. -- 1 of 18 -- Detective Brevet Sergeant Richardson (‘DBS Richardson’) followed the Ford Territory and stopped the vehicle a short distance away. DBS Richardson searched the appellant’s person but located no items of interest. DBS Richardson and other police officers searched the vehicle pursuant to s 52(9) of the CSA, and amongst other items, located a plastic resealable bag containing 112 grams of a powder substance consisting of 89.8 grams of methylamphetamine (the subject of the charge). A fingerprint matching the appellant was located on the outside of the resealable bag. Prior to trial, the appellant applied to exclude the drug evidence on the basis that the search was unlawful as DBS Richardson did not hold a reasonable suspicion under s 52(9) of the CSA. The appellant contended that the evidence should be excluded under the Bunning v Cross discretion. The voir dire judge dismissed the application, and found DBS Richardson held a reasonable suspicion, and in any event, had she found the search of the vehicle was unlawful, she would not have exercised the public policy discretion to exclude the evidence. The appellant’s trial proceeded before another judge, sitting without a jury, who found the appellant guilty of the charged offence. The appellant now appeals against his conviction. While there were numerous grounds of appeal filed, the appellant only pursues Ground 1, which complains that the voir dire judge erred by failing to find the search of the vehicle was unlawful and by declining to exclude the evidence. Held, per the Court, granting permission to appeal but dismissing the appeal: 1. The voir dire judge did not err by finding that the search was not unlawful. The voir dire judge was correct to find that DBS Richardson held a reasonable suspicion under s 52(9) that a search of the vehicle would afford evidence relevant to the commission of an offence against the CSA. 2. While unnecessary to decide, in the circumstances of this case, the voir dire judge did not err in the exercise of her discretion to decline to exclude the evidence. Controlled Substances Act 1984 (SA) ss 32(3), 52(6), 52(9), referred to. R v Kalikas [2022] SADC 142, discussed. Bain v Police (2011) 112 SASR 10; Bunning v Cross (1978) 141 CLR 54; McHugh v The Queen [2022] SASCA 5; Question of Law Reserved (No 1 of 2024) [2025] SASCA 107; Ridgeway v The Queen (1995) 184 CLR 19; R v Willingham (No 2) [2012] SASCFC 104; R v Ireland (1970) 126 CLR 321; R v Marafioti (2014) 118 SASR 511; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2016] SASCFC 96; R v Rogers (2011) 109 SASR 307; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; Wendo v The Queen (1963) 109 CLR 559; Young v The King (2024) 145 SASR 48, considered. -- 2 of 18 -- KALIKAS v THE KING [2026] SASCA 60 Court of Appeal: Criminal – S Doyle, David and B Doyle JJA 1 THE COURT: The appellant was charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’). On 12 March 2021, police were conducting covert operations on Beau Cochrane, a senior member of an Outlaw Motorcycle Crime Gang, the Nomads. This was a long running investigation known as ‘Operation Leo’. 2 It was not the intention of police to arrest or search Mr Cochrane on 12 March 2021. However, police did intend to stop and search any other persons they suspected to have participated in a drug transaction with Mr Cochrane, if that situation arose. The appellant was not known to police nor was he a person of interest under Operation Leo. 3 At about 10:20pm on 12 March 2021, police observed Mr Cochrane travelling in the front passenger seat of a red Audi vehicle. The vehicle entered the carpark of the Windsor Hotel. The appellant, who was driving a Ford Territory vehicle, was already situated in the carpark when the red Audi arrived and parked ‘window to window’ with the Ford Territory. The front passenger window of the red Audi was wound down and adjacent to the driver’s window of the Ford Territory. Police officers suspected that there was a physical exchange of illicit drugs between the occupants of the vehicles. 4 Police officers including Detective Brevet Sergeant Richardson (‘DBS Richardson’) subsequently followed the Ford Territory and stopped the vehicle a short distance away. The appellant exited the vehicle and was spoken to by the police officers. He did not respond to questions and appeared nervous and sweaty. 5 DBS Richardson searched the appellant’s person but located no items of interest. 6 DBS Richardson and other police officers then searched the vehicle pursuant to s 52(9) of the CSA. Located in the centre console was a small (uncharged) quantity of methylamphetamine and $150.00. Also located in the roof cavity of the vehicle was a plastic resealable bag containing 112 grams of a powder substance consisting of 89.8 grams of methylamphetamine (the subject of the charged offence). A fingerprint matching the appellant was located on the outside of the resealable bag. 7 Prior to trial, the appellant applied to exclude the evidence of methylamphetamine on the basis that DBS Richardson did not hold a reasonable suspicion under s 52(9) of the CSA to search the vehicle, and the search was -- 3 of 18 -- [2026] SASCA 60 The Court 2 unlawful. The appellant contended that the evidence should be excluded under the Bunning v Cross1 discretion. 8 The voir dire judge dismissed the application.2 Her Honour found that the appellant had not established, on the balance of probabilities, that DBS Richardson did not hold a reasonable suspicion that there was a substance or equipment in the vehicle that would afford evidence of an offence against the CSA. Her Honour indicated that, in any event, had she found the search of the vehicle was unlawful, she would not have exercised her discretion to exclude the evidence under Bunning v Cross. 9 The appellant’s trial proceeded before another judge sitting without a jury, who found the appellant guilty of the charged offence. 10 The appellant now appeals against his conviction. While there were numerous grounds of appeal filed, the appellant only pursues Ground 1, which complains that the voir dire judge erred by failing to find the search of the vehicle was unlawful and by declining to exclude the evidence. Applicable legal principles 11 Section 52 of the CSA confers a police officer with the powers to stop, search and seize items that may constitute evidence of, or assist with identifying, offences against the CSA. 12 Section 52(9) of the CSA relevantly provides: 52—Power to search, seize etc … (9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may— (a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and (b) detain and search the vehicle, vessel or aircraft; and (c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act. 13 By s 50 of the CSA, all members of the police force are authorised officers for the purposes of the CSA. 1 Bunning v Cross (1978) 141 CLR 54. 2 R v Kalikas [2022] SADC 142. -- 4 of 18 -- [2026] SASCA 60 The Court 3 14 The powers under s 52(9) of the CSA are conditioned upon a police officer reasonably suspecting that a substance or equipment that would afford evidence of an offence against the CSA is in the vehicle. 15 In determining the lawfulness of the exercise of the power under s 52(9), the issues are first, whether the police officer genuinely held the requisite suspicion and secondly, whether that suspicion was reasonable. 16 Whether or not a suspicion is reasonable is a factual question which is to be decided by the Court on the balance of probabilities.3 It is an objective test to be determined by the Court putting itself in the position of the police officer with the knowledge of that police officer and asking whether the suspicion in the circumstances was reasonably held.4 17 A suspicion may be based on a police officer’s observations, together with information the police officer has learnt from other sources. The requirement of reasonableness may require the police officer to assess the reliability of the information communicated to him or her.5 18 In considering the question of what constitutes a ‘reasonable suspicion’ under s 52 of the CSA, the Court of Criminal Appeal in R v Nguyen said:6 A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists. (citations omitted). 19 The Court in R v Nguyen also observed that the element of reasonableness in the context of ss 52(6) and 52(9) of the CSA means that:7 … the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and 3 Wendo v The Queen (1963) 109 CLR 559 at 572-573 (Taylor and Owen JJ). 4 R v Willingham (No 2) [2012] SASCFC 104 at [10] (Gray, Sulan and Stanley JJ). 5 R v Rogers (2011) 109 SASR 307 at [22] (Duggan J). See also Bain v Police (2011) 112 SASR 10 at [29] (White J). 6 R v Nguyen (2013) 117 SASR 432 at [21] (Kourakis CJ, Blue and Stanley JJA). 7 R v Nguyen (2013) 117 SASR 432 at [22] (Kourakis CJ, Blue and Stanley JJA). -- 5 of 18 -- [2026] SASCA 60 The Court 4 would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts. (citations omitted). 20 The threshold test for a reasonable suspicion under ss 52(6) and 52(9) of the CSA requires that a police officer has a reasonable suspicion at the time they conduct a search, not at the point in time at which a police officer resolves to conduct a search (which may be well before he or she embarks on the search of a vehicle).8 Further, the suspicion is required to be objectively reasonable given the facts and circumstances then known to that police officer.9 21 With those principles in mind, we turn to consider the evidence adduced on the voir dire as to the state of mind of DBS Richardson at the point of time he searched the vehicle driven by the appellant under the powers pursuant to s 52(9) of the CSA. Evidence on the voir dire 22 The prosecution called evidence from Detective Sergeant Naomi Maidment (‘DS Maidment’) who oversaw Operation Leo, Detectives Crouch and Irvine who were members of the surveillance team and DBS Richardson, the searching officer. 23 DS Maidment gave evidence that since about December 2020, police had been investigating and conducting surveillance on Mr Cochrane who was suspected of high-level drug trafficking with other associates including Mr Madden. Both were known to be Presidents of different chapters of the Outlaw Motorcycle Crime Gang, the Nomads. 24 Prior to 12 March 2021, police had used telephone intercepts, CCTV, surveillance observations and assistance from Police Air Services to monitor the activities of both Mr Cochrane and Mr Madden. There was a large amount of intelligence associated with the investigation. The police had searched other people associated with Mr Cochrane during the investigation without any illicit drugs being detected. 25 Mr Cochrane was known by investigators to be regularly associated with a red Audi station wagon, and Mr Madden was associated with a black Ford Ranger. 26 On the evening of 12 March 2021, DS Maidment held a briefing with other police officers including DBS Richardson in relation to Operation Leo and the surveillance of Mr Cochrane. It was decided that police would ‘… follow Beau Cochrane and in the event that a meeting was held with Cochrane and another 8 Young v The King (2024) 145 SASR 48 at [45]-[46] (S Doyle JA, Kourakis CJ and David JA agreeing) following McHugh v The Queen [2022] SASCA 5 at [6]-[7] (Kourakis CJ), [14]-[16] (Lovell JA), [17] S Doyle JA). 9 R v Nguyen [2016] SASCFC 96 at [24] (Doyle J, Vanstone and Bampton JJ agreeing). -- 6 of 18 -- [2026] SASCA 60 The Court 5 person indicative of a drug transaction, that we would look at stopping the person involved in that transaction’. 27 Later that evening at about 7:30pm, police commenced their surveillance of Mr Cochrane and his associates at the home address of Mr Madden. Their observations were reported to Detective Crouch, who recorded all observations on a central surveillance log. DS Maidment was co-ordinating actions from an office location. DBS Richardson was in a police vehicle closer to where the surveillance team was operating. 28 Both Detectives Maidment and Richardson had access to information being shared on two restricted radio channels: one being used by members of the surveillance section; and one being used by members of the Crime Gangs Task Force. 29 At about 9:20pm, the Ford Ranger departed Mr Madden’s residential address and attended at a St Bernards Road address. Approximately 15 minutes later, police observed two males enter the same Ford Ranger utility and depart the St Bernards Road address. Police were unable to make sufficiently detailed observations of the two men to be sure about their identity. The surveillance log recorded their identity as ‘unknown’. However, DS Maidment gave evidence that she believed the two men were Mr Cochrane and Mr Madden based on their physical description, and the fact that the men were seen to enter the St Bernards Road address when police understood that only a couple of people (including Mr Cochrane and Mr Madden) had access to the premises. 30 DS Maidment said that the attendance of Mr Cochrane and Mr Madden at the St Bernards Road address for about 15 minutes, coupled with her previous observations about the use of the property, led her to suspect that they had attended to collect or drop off an item associated with drug trafficking. 31 Police followed the Ford Ranger from the St Bernards Road address to a number of different locations including the Paradise Bus Interchange. The vehicle was observed to conduct various laps of the interchange without stopping. Police lost sight of the Ford Ranger at Lower North East Road, Campbelltown. 32 The next observation of Mr Cochrane occurred at Henry Street Glynde, where the red Audi associated with Mr Cochrane was observed to be parked outside. At 10:10pm, Mr Cochrane, his wife and two children got into the red Audi with his wife driving the vehicle. The Ford Ranger was not seen at the premises, but Detective Richardson gave evidence that he understood that the vehicle could be stored in an undercover carport behind a roller door, so a lack of observations of the vehicle did not exclude the possibility that it was also at the premises. 33 Police followed the red Audi to the carpark of the Windsor Hotel where it parked ‘window to window’ with a Ford Territory vehicle. The front passenger side window of the red Audi (where Mr Cochrane was seated) was wound down -- 7 of 18 -- [2026] SASCA 60 The Court 6 and adjacent to the front driver’s side of the Ford Territory. These two vehicles remained in this position for approximately two minutes before both vehicles departed the Windsor Hotel carpark in quick succession. 34 DS Maidment received information over the surveillance and Crime Gangs Task Force radio channels and via mobile telephone about these events. She gave evidence that from radio communications she learnt that ‘… the two cars had come together in the carpark and then left …’. She then spoke with Detective Irvine who advised her that the two cars were ‘window to window’ and ‘the two cars were in a position where Mr Cochrane as the front passenger was in a position to speak to the front driver of the Territory …’. DS Maidment gave evidence that she asked Detective Irvine whether it was physically possible that a transaction had occurred, and he confirmed that it was possible. 35 DS Maidment then told the other police officers via a recorded radio communication that ‘alright guys, they think the exchange could have happened with a SUV, I’m just trying to work out where and they think it’s a Ford Territory. I’m just trying to work out the rego’. 36 By way of background, Detective Crouch was the surveillance officer who made observations of the two vehicles at 10:21pm in the Windsor Hotel carpark. Detective Crouch was not in position to directly observe the two vehicles in the moments after the red Audi parked next to the Ford Territory in the carpark. He only had direct observations of the two vehicles after they parked adjacent to each, and for about one minute. Thus, there was a short period where he was not in a position to observe any exchange between the occupants of the vehicles. 37 Detective Crouch informed Detective Irvine (and others) of his observations over the surveillance radio channel. Detective Irvine then had a conversation with DS Maidment wherein he told her that an exchange might have taken place at the Windsor Hotel carpark. As to this conversation, Detective Irvine explained in his evidence: I wouldn’t have said an exchange had taken place but I would have said that we haven’t seen it if the circumstances surrounding a particular sequence of events would lead me to suspect that it may have occurred, I would tell her that but if we didn’t see it, I wouldn’t categorically say we saw an exchange. 38 DS Maidment then spoke with DBS Richardson. DS Maidment initially gave evidence that she told DBS Richardson that ‘surveillance had seen a transaction, and that we would then pursue the Territory on the back of that’. In cross-examination, however, she qualified her evidence by agreeing that she said Detective Irvine told her ‘that an exchange might have taken place’. -- 8 of 18 -- [2026] SASCA 60 The Court 7 39 DS Maidment gave evidence as follows: Q: You would agree, Detective Maidment, that with the information you received from surveillance and forwarded to Richardson there was certainly no certainty that an exchange had taken place was there, in your mind. A: I reasonably suspected one did, and in my view, the only way to check that information was to conduct the vehicle stop and search under the Controlled Substances Act. Q: At the end of the day, wouldn’t you agree that you were still unsure as to whether an exchange had actually taken place before the stop went in. A: All I can say is, in my experience, all the circumstances of that night I reasonably suspected that a transaction had taken place. There was no way of knowing definitively yes, that one had. 40 Police maintained their observations of the Ford Territory, and at about 10:33pm, DBS Richardson stopped the vehicle. The appellant was the driver (and only occupant) of the vehicle. DBS Richardson searched the appellant’s person. He identified no items of interest. DBS Richardson and other police officers then searched the vehicle, and located the following items: • three $50.00 notes in the centre console; • a black container with two small plastic resealable bags containing 0.76 grams and 1.7 grams of methylamphetamine, respectively, in the centre console; • a small plastic resealable bag containing 1.72 grams of methylamphetamine in a backpack on the rear seat; • a Samsung mobile phone in the centre console; • a latex glove located in the roof cavity; and • a medium press-seal bag containing 112 grams of a powder substance consisting of 89.8 grams of methylamphetamine secreted in the roof cavity. DBS Richardson’s state of mind 41 By way of background, DBS Richardson had been a police officer for approximately 15 years. He had spent about a five-year period between 2013 to 2018, and two years from 2019 to 2021, as a member of the Crime Gangs Task Force. 42 In general terms, DBS Richardson gave evidence that his suspicion under s 52(9) of the CSA to search the vehicle was grounded in his background knowledge of the alleged criminal activities of Mr Cochrane and Mr Madden, their -- 9 of 18 -- [2026] SASCA 60 The Court 8 movements on 12 March 2021, and his communications with the surveillance officers as to the events at the Windsor Hotel carpark. He also relied on police checks communicated to him that the Ford Territory was associated with drug users, and that when he stopped the vehicle, the appellant did not respond to questioning and presented as nervous and sweaty. However, DBS Richardson conceded that he would have searched the Ford Territory irrespective of the latter two considerations (those being the police checks on the vehicle and the appellant’s appearance). 43 More particularly, DBS Richardson relied on the following matters to ground his reasonable suspicion under s 52(9) of the CSA: • Since 2020, DBS Richardson was involved in an ongoing drug investigation into Mr Cochrane trafficking illicit drugs, specifically methylamphetamine. During this investigation, he became familiar with his associates including Mr Madden, who he suspected was also involved in criminal drug activity. • DBS Richardson was aware that earlier that evening, Mr Cochrane and Mr Madden had attended the St Bernards Road address for about 15 minutes. He suspected on the basis of previous observations and intelligence, that this address was being used as a ‘safe house’ to store drugs and other illicit items. He suspected that Mr Cochrane and Mr Madden had attended the address for such a short period as they were only there for the purpose of collecting items in relation to a drug transaction. • DBS Richardson was aware that immediately upon Mr Cochrane and Mr Madden leaving the St Bernards Road address, they travelled to the Paradise Bus Interchange, where they conducted loops of the area. He was of the view that this driving behaviour was consistent with Mr Cochrane and Mr Madden attempting to meet someone for a drug transaction. His previous experience was that drug transactions often occurred in public places and involved a brief meeting. Further, given the vehicle did not stop at any stage, he suspected the items collected from the St Bernards Road address remained in the vehicle. However, DBS Richardson conceded that there may be other reasons for this driving. • DBS Richardson became aware via a combination of both radio channels that the red Audi had travelled to the Windsor Hotel carpark at about 10:21pm and parked adjacent to a Ford Territory vehicle, with the front passenger side window of the red Audi station wagon wound down and immediately next to the front driver’s side window of the Ford Territory. He was also aware that the two vehicles were in this position for a couple of minutes and both vehicles left the carpark in quick succession. -- 10 of 18 -- [2026] SASCA 60 The Court 9 • DBS Richardson gave evidence that he received information from DS Maidment via a recorded radio communication that ‘alright guys, they think the exchange could have happened with a SUV, I’m just trying to work out where and they think it’s a Ford Territory. I’m just trying to work out the rego’. • DBS Richardson confirmed that he had not received information that surveillance officers had witnessed a physical exchange between the occupants of the two vehicles. • DBS Richardson gave evidence that at 10:25pm, DS Maidment provided more information over the radio, including that ‘they reckon that [the appellant’s vehicle] pulled up on the passenger side, of, like, where [Mr Cochrane] was sitting. Pretty happy that it was an exchange of some sort. So, happy to put a stop on the car’. He said that he understood that at this point, DS Maidment had more information than him as ‘it [was] common … for the team leader [DS Maidment] to be in contact with the team leader of the surveillance team [Detective Irvine]’. • DBS Richardson was also advised by DS Maidment that persons linked to the registration of the Ford Territory ‘are all drug users’. He understood that this information would likely have come from police system checks linked with the registration of the vehicle. • Upon stopping the Ford Territory, DBS Richardson observed that the appellant did not respond to his questions, and the appellant was sweating and appeared nervous. 44 It was suggested to DBS Richardson that after DS Maidment told him that she was ‘(p)retty happy that it was an exchange of some sort’, he simply relied on her ‘directions’ to this effect and stopped and searched the vehicle without a reasonable suspicion. DBS Richardson denied this was the case and replied that while he was aware that no police officer had witnessed a physical exchange, it was the circumstances and observations of the surveillance officers which caused him to suspect that one had occurred. DBS Richardson clarified that he had not simply followed directions but formed his own reasonable suspicion as required by s 52(9) of the CSA. 45 Detectives Maidment and Richardson both agreed that they had no specific information or intelligence that a transaction was being planned for that evening. DBS Richardson agreed that the plan for the evening was to conduct a vehicle stop of anyone who had come into contact with Mr Cochrane and who was reasonably suspected of having been involved in a drug transaction. There was no intention, at that stage, to arrest Mr Cochrane. DBS Richardson said that the search of the Ford Territory vehicle was conducted in a manner to avoid alerting Mr Cochrane to the presence of police. -- 11 of 18 -- [2026] SASCA 60 The Court 10 The appeal grounds 46 The appellant is only proceeding on the first ground of appeal, which is cast in the following terms: 1. The Learned Trial Judge (“LTJ”) erred in failing to exclude as evidence in the trial the search of the appellant's motor vehicle on 13 March 2021. Particulars 1.1 The LTJ erred in finding that the police held the requisite ‘reasonable suspicion’ to execute their powers pursuant to section 52(9) of the Controlled Substances Act 1984 (SA). 1.1.1 The suspicions relied on by police, neither alone nor in combination, were capable of amounting to a ‘reasonable suspicion’ at law. 47 In considering the question of whether the search of the vehicle driven by the appellant was unlawful, the applicable standard of appellate review is the correctness standard. The challenge to the reasonableness of DBS Richardson’s suspicion admits of only one correct answer even though, to some extent, this involves an evaluative assessment. Accordingly, the standard of correctness applies and the question for this Court is whether the voir dire judge erred by finding that DBS Richardson’s suspicion was reasonable and the search was not unlawful. The appellant’s contentions 48 There is no challenge to the voir dire judge’s finding that DBS Richardson held an honest suspicion that a search of the vehicle would afford evidence of an offence against the CSA. Rather, the appellant challenges the reasonableness of that suspicion and in particular, her Honour’s anterior finding that it was ‘objectively reasonable’ for DBS Richardson to suspect, or indeed conclude, that there had been a physical exchange of an item between Mr Cochrane and the appellant at the Windsor Hotel carpark in the absence of any direct observations of an exchange. 49 In support of this contention, the appellant emphasises three matters. 50 First, the police had been investigating Mr Cochrane for three months but had not identified any illicit drug sales. 51 Secondly, the police had no information which suggested that the appellant was going to meet with Mr Cochrane, or that Mr Cochrane was going to conduct a drug transaction on 12 March 2021. The appellant also emphasises that apart from ‘assumptions’ about Mr Cochrane’s movements earlier in the evening, there was no evidence that Mr Cochrane had planned to sell drugs to the anyone, let alone the appellant, on 12 March 2021. -- 12 of 18 -- [2026] SASCA 60 The Court 11 52 Thirdly, the appellant was unknown to the police, and the police were in possession of no information relating to the appellant which may have supported Mr Cochrane having parked alongside him for an illegal or any purpose. 53 In essence, the appellant contends that on the facts in this case, absent any observation of a physical exchange, and DBS Richardson knowing that to be the case, it was not reasonable for DBS Richardson to rely on the assertions of DS Maidment that she was ‘pretty happy’ that there was a physical exchange of some sort between the occupants of the vehicles. Moreover, the appellant submits that it was not reasonable for DBS Richardson to suspect that there were drugs in the appellant's vehicle when he was aware that surveillance officers had not observed any physical exchange in the carpark. 54 The appellant also relies on the authority of R v Marafioti10 (‘Marafioti’). In that case, the police had stopped the accused’s motor vehicle. The police made observations that the accused was intoxicated. In addition, the grounds for the police officer’s suspicion included that the accused was driving a hire car which was a modus operandi for drug dealers, carrying a bum bag of the kind used by drug dealers, appeared evasive and agitated, and gave an account as to where he was going that was inconsistent with his passengers. On appeal, Kourakis CJ said the following in relation to objective reasoning:11 … However, in the absence of his belief about Ms Doukas’ state of intoxication I harbour doubts about the reasonableness of the other grounds. There are many law-abiding members of the community who for a variety of reasons hire cars to travel in their home state, wear bumbags or become anxious in the presence of police. True is it that the other circumstances relied on by Constable Boyd may often be associated with drug dealers but they are also commonly associated with innocent persons. The suspicion associated with those circumstances is qualitatively and quantitatively very much weaker than the suspicion which attaches to a drug intoxicated person. Behaviours which might appear “odd” or “different” to some should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers. 55 The appellant submits that if the circumstances in Marafioti, apart from the drug intoxication, were incapable of founding a reasonable suspicion, then the absence of any observations of a physical exchange with the appellant, meant that this case must suffer from the same vice. 56 On the question of the exercise of the discretion, the appellant contends that should this Court find that the search was unlawful, it should exercise the discretion to exclude the evidence given: • the fundamental rights abrogated by s 52(9) of the CSA require the court to insist on strict compliance by police; 10 R v Marafioti (2014) 118 SASR 511. 11 R v Marafioti (2014) 118 SASR 511 at [12]-[13] (Kourakis CJ). -- 13 of 18 -- [2026] SASCA 60 The Court 12 • this was not a mere mistake or technical breach of the law but rather, the conduct of the police carried with it an obvious risk of unlawful interference with the rights of an individual; • the conduct involved relatively senior and experienced police officers who use these search powers frequently without any adequate training; • these types of plans and surveillance operations are common, and the decision to search on the grounds that something might have happened was not isolated to this incident; and • the circumstances of this case highlight the importance of police properly appreciating the facts underpinning the basis for their suspicions. Where operations of this kind are common, and the police receive no adequate training, then the court must exclude the evidence to censure the excesses of power and better secure compliance with the statutory limitation of detention and search conferred by s 52(9). Consideration 57 For the reasons which follow, we are satisfied that the entirety of the facts and circumstances as perceived and explained by DBS Richardson established the reasonableness of his suspicion that a search of the Ford Territory driven by the appellant would afford evidence of an offence against the CSA. 58 First, DBS Richardson had prior knowledge and suspicion of the drug-dealing activities of Mr Cochrane, and his association with the Nomads, an Outlaw Motorcycle Crime Gang associated with drug trafficking. The fact that the police were yet to obtain any concrete evidence of Mr Cochrane engaging directly in an illegal drug transaction did not detract in any material way from that knowledge. Operation Leo had only been running for three months, and it is not unusual that drug syndicates are conducted with considerable care to avoid detection and disruption by police. 59 Secondly, by virtue of his ongoing participation and role in Operation Leo, DBS Richardson was also aware that the St Bernards Road address was a suspected drug storage facility for those alleged illegal drug activities. 60 Thirdly, and against that background, DBS Richardson had information about the movements of the Ford Ranger and red Audi (associated with Mr Madden and Mr Cochrane, respectively) earlier in the evening. DBS Richardson was aware that Mr Cochrane and Mr Madden were suspected of leaving the St Bernards Road address and travelling in the Ford Ranger to the Paradise Bus Interchange completing loops of the area. DBS Richardson, from his considerable policing experience, believed this driving behaviour was consistent with Mr Cochrane and Mr Madden collecting a drug parcel (from the safe house) and attempting to complete a drug transaction with persons who did not attend as arranged. -- 14 of 18 -- [2026] SASCA 60 The Court 13 61 DBS Richardson was also aware that Mr Cochrane travelled in the red Audi to the Windsor Hotel carpark and parked the vehicle alongside the Ford Territory driven by the appellant. While it may be accepted that DBS Richardson was aware that no police officer had seen a physical exchange of any item, this did not detract from the reasonableness of his suspicion – there was a period of time when Detective Crouch was in the vicinity of the carpark but did not have the vehicles under direct observation allowing for such an exchange to have occurred without being seen by surveillance officers. This was not a case where DBS Richardson received a communication that there was positively no exchange. Rather, the information left open the real possibility that Detective Crouch did not have the vehicles under direct observation at the time of a physical exchange between the occupants of the vehicles and simply missed it. 62 Fourthly, DBS Richardson was told by DS Maidment that she was ‘pretty happy there was an exchange of some sort’. This conversation reinforced the information received by DBS Richardson from surveillance officers over the radio channels as to the movements of the red Audi and the Ford Territory. 63 As outlined earlier, a suspicion may be informed by matters which are not directly observed by a police officer, but which have been communicated to the police officer. However, the requirement of reasonableness under s 52(9) may require the police officer to assess the reliability and cogency of the hearsay information which has been reported.12 64 In this case, we consider it was reasonable for DBS Richardson to rely on DS Maidment’s communication that she was ‘pretty happy there was an exchange of some sort’. DS Maidment had more information than DBS Richardson about the events of the evening, including about the events at the carpark, as she was in direct telephone contact with the leader of the Surveillance Team, Detective Irvine. She was also the Team Leader of Operation Leo, which provided her with an overview of all aspects of police operations that evening. 65 Fifthly, DBS Richardson said that he suspected that the movements of the two vehicles were consistent with his experience of criminal drug transactions, which frequently occurred in public places for only a very short period of time, with neither participant leaving his or her vehicle and both vehicles leaving the area immediately after one another. 66 Sixthly, DBS Richardson had also received information from DS Maidment that persons associated with the registration of the Ford Territory were recorded on the police system as drug users. DBS Richardson had received this information before he searched the vehicle. Again, we consider it was reasonable for DBS Richardson to rely on this communication given it emanated from DS Maidment after she had conducted checks of the vehicle’s registration on the police system. It was reasonable for DBS Richardson to consider it reliable. 12 R v Rogers (2011) 109 SASR 307 at [22] (Duggan J). -- 15 of 18 -- [2026] SASCA 60 The Court 14 Although DBS Richardson said this information added little to his suspicions, and that he had already decided to search the vehicle before receiving this information, it was a matter which remained relevant to the reasonableness of his suspicions, albeit one to be accorded relatively less weight than other considerations. 67 Seventhly, after DBS Richardson stopped the vehicle but before he searched the vehicle, the appellant presented as nervous and sweaty and did not respond to his questions. While these matters may be considered insufficient by themselves to ground a reasonable suspicion (as they were in Marafioti), they were still relevant considerations when assessing the reasonableness of DBS Richardson’s suspicion at the point he embarked upon a search of the appellant’s vehicle. 68 For those reasons, and in all the circumstances of this case, we are satisfied that DBS Richardson held a reasonable suspicion that a search of the Ford Territory would afford evidence relevant to the commission of an offence against the CSA. There was a rational connection between the information DBS Richardson had received and his suspicions. This was not ‘mere curiosity, speculation or idle wondering’ by DBS Richardson that a search of the vehicle would produce evidence of an offence contrary to the CSA. 69 It follows that the voir dire judge did not err by finding that the search was not unlawful under s 52(9) of the CSA. 70 Having concluded that the search was not unlawful, there is no basis for this Court to exercise the public policy discretion to exclude the drug evidence. However, even if we had found that DBS Richardson’s suspicions were not reasonable, and the search unlawful, we would not have reached the conclusion that the voir dire judge erred in declining to exercise her discretion to exclude the evidence. 71 The public policy discretion to exclude evidence obtained by unlawful or improper conduct was recognised by the High Court in R v Ireland13 and confirmed in Bunning v Cross.14 72 In Bunning v Cross, Stephen and Aickin JJ (with whom Barwick CJ agreed) said:15 … What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the 13 R v Ireland (1970) 126 CLR 321. 14 Bunning v Cross (1978) 141 CLR 54. 15 Bunning v Cross (1978) 141 CLR 54 at 74-75. -- 16 of 18 -- [2026] SASCA 60 The Court 15 accused being only one factor which, if present, will play its part in the whole process of consideration. 73 In Young v The King16, S Doyle JA considered more recent observations made by the High Court as to the exercise of the public policy discretion: Similar observations were made by the High Court in Cleland v The Queen, Pollard v The Queen, Ridgeway v The Queen, R v Swaffield and Nicholas v The Queen. Through these cases, the Court has emphasised the competing public policy interests in: • on the one hand, protecting an accused person’s freedom from arbitrary and unlawful intrusion upon their lives and rights; deterring police from engaging in unlawful, improper and unfair treatment of an accused person; and avoiding any diminishment of judicial integrity through the appearance of curial approval or encouragement of police misconduct; and • on the other hand, ensuring that those who commit crimes are brought to justice; and that the credibility and legitimacy of the criminal trial process is maintained through trials which represent a genuine attempt to establish the facts upon which a decision depends by reference to all relevant evidence. In exercising the discretion, and hence in considering and weighing the competing requirements of the above public policy concerns, the courts in Bunning v Cross and subsequent decisions have identified several relevant considerations: • the seriousness of the charged offending; • whether the misconduct was deliberate or resulted from a mistake; • whether the misconduct affected the cogency of the evidence so obtained; • the probative value of the evidence, and its importance in the proceedings; • the ease with which those responsible for the misconduct might have complied with the law in procuring the evidence in question; • the legislative intention (if any) in relation to the law said to have been infringed; and • whether such misconduct was encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. (Citations omitted) 74 Applying those principles to the present case, it is to be immediately observed that there was no suggestion on this appeal that DBS Richardson’s suspicion was not honestly held, or that any alleged unlawfulness was deliberate or of a malicious nature. Further, on any view of the evidence, the information relied upon by DBS Richardson to ground his suspicion was not trifling or lacking in cogency. DBS Richardson acted upon his own considerable background knowledge of how illicit drug transactions are conducted, as well as his knowledge of matters particular to Operation Leo and Mr Cochrane. He also relied on information received from various reliable police sources including from the Team Leader, DS Maidment, and surveillance officers. While there were some vagaries as to the evidence about the nature of a physical exchange, this information was 16 Young v The King (2024) 145 SASR 48 at [90]-[91] (S Doyle JA, Kourakis CJ and David JA agreeing). -- 17 of 18 -- [2026] SASCA 60 The Court 16 communicated in the context of other broader material, all of which DBS Richardson had regard to when forming his suspicions. 75 Further, the evidence found during the search consisted of a significant amount of methylamphetamine. The quality of the evidence was not affected by DBS Richardson’s alleged unlawful conduct. It was also highly probative of a serious criminal offence. 76 As to the intrusion to the appellant’s rights and civil liberties, the appellant was stopped driving a vehicle on a public road. The search of a vehicle in those circumstances is distinguishable from police entry and intrusion on a person’s private property, which involve a more egregious invasion of a person’s rights and liberties.17 77 For those reasons, had it been necessary, we would have found that the voir dire judge did not err in the exercise of her discretion to decline to exclude the evidence. Orders 78 We grant permission to appeal but dismiss the appeal against conviction. 17 Cf Question of Law Reserved (No 1 of 2024) [2025] SASCA 107. -- 18 of 18 --